Tuidama v Reginam [1977] FJSC 53; Criminal Appeal 079 of 1977 (9 September 1977)

Fiji Islands - Tuidama v Reginam - Pacific Law Materials

IN THE SUPREME COURT OF FIJI

APPELLATE JURISDICTION

CRIMINAL APPEAL No.79 of 1977

AS TELI TUIDAMA
Appellant

v

REGINAM
Respondent

JUDGMENT

The appellant was convicted by the Magistrate Court Suvt Suva of larceny by a servant contrary to section 306(a)(i) of the Penal and was sentenced to 12 months' imprisonment.

He appe appeals against his conviction and sentence.

He was charged jointly with four others who all pleaded guilty and were dealt with some weeks before the appellant's trial began each receiving a sentence of 12 months' imprisonment. The was unrepresented at the trial as he is before this Court.

There was unchallenged evidence before the trial Court that goods worth $197.34 had been stolen from the "reserve stock storeroom" of Morris Hedstrom's. Vonotabua, one of the four accused who had pleaded guilty, admitted stealing them from the storeroom and stated that appellant had acted as lookout while he and the other three did the stealing. The appellant was employed by the Company as a car park attendant while the others were employed to work inside the store. Vonotabua said-

" This accused (indicated) I have known for 2 years now. He was a car park attendant employed by Morris Hedstroms Limited. When we were stealing, this accused was always on the watch out for security guards. When they were not around we could steal."

He also claimed that when they sold the stolen goods, he gave part of the proceeds to the appellant.

The appellant admitted knowing Vonotabua and being friendly him but denied having had anything to do with the stealing of these goods or having received any money from Vonotabua after their sale.

Normally a conviction based on such evidence would not be allowed to stand. In this case, however, the learned Magistrate seemed to have been thoroughly impressed by the truthfulness of Vonotabua and found himself fully satisfied of the appellant's guilt. He gave himself the necessary warning in the following terms:

"It will be seen from the foregoing that the sole evidence against this Accused is that of P.W.1. P.W.1 's Position in this case is that of an accomplice if I believe what he says. Before I can act on his evidence to the detriment of this Accused I must warn myself of the danger of acting on the uncorroborated evidence of or accomplice. I so worn myself as a judge would warn a jury for clearly P W 1's evidence is uncorroborated. Exhibits P1 and P2 are in no way corroboration for they are again dependent upon the testimony of P.W.1. The Accused made denials throughout. There is no corroboration of P W 1’s testimony. "

In cases where such a warning has been given an appeal will be allowed only if the evidence otherwise proves to be unsatisfactory. As the learned author says in Archold (39^th Edn. Para.916):

"If after the proper caution by the judge the jury convict the defendant the court will not quash the conviction merely upon the ground that the evidence was uncorroborated but will review all the facts of the case and, if it thinks the verdict under all the circumstances of the case is unsafe or unsatisfactory, will quash the conviction. "

In view of the learned Magistrate's careful assessment of the evidence, I do not consider the verdict unsatisfactory The appeal against conviction is, therefore, dismissed.

As for the sentence, it is, if anything, on the lenient side. The other four, who were the main offenders received, in my view, very light sentence indeed. It seems that the learned Magistrate who sentenced then gave considerable weight to their plea of guilty and to the fact that they had rendered valuable assistance to the police in their investigation.

The sentence of 12 months in the case of the appellant is neither excessive nor wrong in principle. The appeal against shutout, is also dismissed.

G. Mishra
ACTING CHIEF JUSTICE

Suva,
9th September, 1977